State v. Carter, 13–KA–94.
| Decision Date | 30 October 2013 |
| Docket Number | No. 13–KA–94.,13–KA–94. |
| Citation | 128 So.3d 1108 |
| Parties | STATE of Louisiana v. Jermaine CARTER. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
Thomas F. Daley, District Attorney, Philip Prescott, Assistant District Attorney, Edgard, Louisiana, for Plaintiff/Appellee.
Prentice L. White, Attorney at Law, Baton Rouge, Louisiana, for Defendant/Appellant.
Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
Defendant, Jermaine Carter, appeals his convictions for first degree robbery and attempted first degree robbery. For the following reasons, we affirm defendant's convictions and sentences.
On January 17, 2012, the St. John the Baptist Parish District Attorney filed a bill of information charging defendant, Jermaine Carter, with armed robbery with a firearm, in violation of LSA–R.S. 14:64 and 14:64.3. Defendant was arraigned and pled not guilty. On March 12, 2012, the district attorney amended the bill of information, adding a second charge of armed robbery with a firearm. Defendant pled not guilty to the amended bill of information.
Trial of this matter commenced on June 19, 2012. On June 20, 2012, the jury returned unanimous responsive verdicts of guilty of first degree robbery on count one, in violation of LSA–R.S. 14:64.1, and guilty of attempted first degree robbery on count two, in violation of LSA–R.S. 14:27:64.1.
On June 22, 2012, the State filed a multiple offender bill of information, alleging defendant to be a third felony offender. On August 20, 2012, after a hearing on the multiple bill, the trial court adjudicated defendant a third felony offender. The trial court sentenced defendant as a third felony offender on both counts.1 On count one, defendant was sentenced to 30 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On count two, defendant received a concurrent sentence of 15 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant appeals.
Mr. Vu Tran, the victim, testified that in January of 2012, he was employed at Lynn's Grocery in Reserve, Louisiana. Around noon on January 5, 2012, defendant, who was known to Mr. Tran as a regular customer of Lynn's, entered the store, demanded vodka and cigarettes, and refused to pay. Defendant then said, “if anybody has something to say, I got this for them.” At that point, defendant reached in his pocket and then placed a gun on the counter. Mr. Tran, who was behind the counter and operating the register, complied with defendant's demands and relinquished the items without receiving payment.
Later that same day, at approximately 2:00 p.m., defendant returned to the grocery and requested beer. As Mr. Tran bagged the beer and asked defendant for payment, defendant pulled a gun from his back pocket and pointed it at Mr. Tran's face. According to Mr. Tran, defendant then demanded, “Give me my shit before I shoot somebody.” Defendant then took the beer without paying for it.
The next morning Mr. Tran notified the police.2 In the course of the investigation, Mr. Tran gave a statement to the police, which was introduced into evidence at trial. In his statement, Mr. Tran indicated that defendant entered the store three times on January 5, 2012. The first time, defendant, in an intimidating and threatening manner, threw a gun on the counter and demanded beer and cigarettes. The victim complied and gave defendant the items without receiving payment. Defendant returned approximately one hour later, brandished a handgun, pointed it at the victim's face, and took two beers without payment. According to Mr. Tran, defendant returned a third time and continued to threaten and intimidate the victim.
The grocery store is equipped with surveillance cameras, which recorded the incidents on January 5, 2012. The video recordings do not include audio.
Video footage of the first incident shows defendant approach the counter behind which the victim was operating the register with a bottle in his hand. Defendant was speaking to the victim, gesturing, and walking around near the counter. He then put an object on the counter, which appeared to be a gun. Mr. Tran pushed the object back to defendant. Thereafter, the video shows that Mr. Tran handed a pack of cigarettes to defendant and defendant walked away from the counter while continuing to talk to Mr. Tran.
Video footage of the second incident depicts defendant and several other patrons near the counter. Defendant placed two beers on the counter, while gesturing and talking with the victim and other patrons. The victim bagged the beers. Moments later, defendant pulled from his back pocket what appeared to be a handgun and pointed it at the victim's face. The victim ducked, and defendant put the gun back in his pocket and continued talking and gesturing. He then grabbed the beers from the counter without payment and conversed with other patrons in the store. The victim continued to serve the next patron. The defendant then returned to the counter, continuing to talk and gesture, and then shook hands with the victim before exiting the store. Although the video footage provided does not show defendant leaving the store with the beers, Mr. Tran testified that defendant did leave the store with the beers.
When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the appellate court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Since defendant submits a claim of insufficient evidence in his third assignment of error, this issue will be addressed first.
In defendant's third assignment of error, he argues that the evidence was insufficient to support the guilty verdicts of first degree robbery and attempted first degree robbery. Specifically, defendant contends that the State failed to prove he took something of value and that he was armed with a handgun. He also contends that the video evidence failed to show that either Mr. Tran or any of his customers felt threatened by defendant's eccentric behavior. Conversely, the State maintains the evidence was sufficient to support defendant's convictions.
In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00–0674, p. 9 (La.6/29/01), 796 So.2d 649, 657,cert. denied,535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09–953, p. 4 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534,writ denied,10–1357 (La.1/7/11), 52 So.3d 885. Under this Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08–20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id., 08–20 at 7, 985 So.2d at 240.
It is the role of the fact-finder to weigh the credibility of the witnesses, and a reviewing court will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. State v. Reed, 11–507, p. 10 (La.App. 5 Cir. 2/14/12), 88 So.3d 601, 607,writ denied,12–0644 (La.9/14/12), 97 So.3d 1014. When the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Bailey, 04–85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955,writ denied,04–1605 (La.11/15/04), 887 So.2d 476,cert. denied,546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon, 07–915, p. 11 (La.App. 5 Cir. 3/11/08), 982 So.2d 146, 153,writ denied,08–0987 (La.1/30/09), 999 So.2d 745.
In the present case, defendant was charged with two counts of armed robbery with a firearm and ultimately convicted of the responsive verdicts of first degree robbery, in violation of LSA–R.S. 14:64.1, and attempted first degree robbery, in violation of LSA–R.S. 14:27:64.1.
First degree robbery is the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by the use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon. LSA–R.S. 14:64.1; State v. Cambrice, 10–26, p. 10 (La.App. 5 Cir. 4/26/11), 64 So.3d 363, 370–71,writ denied,11–1181 (La.3/23/12), 84 So.3d 568. To support a conviction for first degree robbery, the State must prove that the offender induced a subjective belief in the victim that he was armed with a dangerous weapon and that the victim's belief was objectively reasonable under the circumstances. Cambrice, 10–26 at 10, 64 So.3d at 370. The statute excludes unreasonable panic reactions by the victim, but otherwise allows the victim's subjective beliefs to determine whether the offender has committed first degree robbery or the lesser offense of simple robbery. Id., 10–26 at 10–11, 64 So.3d at 370. Direct testimony by the...
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